' SAEED-UR-REHMAN FARRUKH, J.--- This appeal is directed against the judgment, dated 4-2-2002 passed by the Sessions Judge, Rawalpindi whereby the respondent No,1 was acquitted of the charge of Zina under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
' Mst. Sajida Parveen, victim, filed appeal against the acquittal of Muhammad Bashir, respondent No,1 which was admitted to regular hearing vide Court's order dated 1-11-2002.
2. Relevant facts of the case giving rise to the present appeal are; Mst. Sajida Parveen complainant (P.W.1) lodged complaint (Exh.P.A.) (which was later on reduced into formal F.I.R. Exh.P.A./1) before Sajid Hussain Inspector (P.W.9) at Police Station Airport Rawalpindi, alleging therein that they are seven sisters and six brothers. Seven/eight years prior to the registration of this case, she was aged about 15/16 years. When her mother was in the hospital to look after her ailing child, her real father, Muhammad Bashir came at her bed and started caressing her body. He was armed with pistol and threatened her not to raise hue and cry, otherwise he would murder her and then he committed Zina with her. She further alleged that after 15/20 days he again committed Zina with her and lastly on 19-8-2000 the appellant had committed Zina with her. She also alleged that she tried to commit suicide by taking pills but her life was saved by taking her to hospital. She deposed that she wailed her sister Mst. Khurshid Begum to save herself from her father, whose character was not good.
3. Investigation was initiated during the course whereof the Investigating Officer inspected the place of occurrence and arrested Muhammad Bashir accused and got him medically examined from the hospital. During the search of the room of Muhammad Bashir accused five fire-arms were recovered. One double-barrel .12 bore gun P.1 alongwith its licence P.2, eight cartridges of .12 bore P.3/1-8, one .222 rifle (P.4) with 25 bullets P.5/1-25 and its licence P.6 taken into possession vide memo. Exh.P.B. The Investigating Officer also took into possession one .30 bore pistol and one .32 bore revolver vide memo. Exh.P.C. And Exh.P.D. Respectively. From the attache case of the respondent one .30 bore revolver was taken into possession vide recovery memo. Exh.P.E. Last three weapons were unlicensed. After completion of necessary investigation he challaned the accused to Court.
4. At the commencement of trial, charge-sheet was framed against the respondent under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He pleaded innocence and claimed to be tried.
5. During the course of trial, the prosecution produced, in all, nine witnesses, out of whom, the testimony of Muhammad Aslam Constable P.W.5, Muhammad Arshad Constable P.W.6 and Naveed Iqbal, Constable P.W.7 is of formal nature and need not be dilated upon.
' Mst. Sajida Parveen complainant P. W.1 deposed about the occurrence as alleged by her in the F.I.R. During cross-examination she admitted that the accused committed Zina with her for the first time on 17-12-1991 when her age was about 15/16 yeas. She conceded that she did not disclose this fact to anybody since 1995 till lodging of the F.I.R. She denied the suggestion that much before this occurrence her father had disinherited her brother Ali Asghar from his property. She conceded that she did not inform any member of her family about the repeated occurrences of rape, approximately more than 259 times spreading over the period of 7/8 years. She denied the suggestion that on the fateful day her father found two persons in their house in objectionable position and for that reason the complaint was lodged against her father.
' Mst. Makhmal Bibi, mother of the victim appeared in the witness-box as P.W.2 and deposed that Muhammad Bashir accused was her husband. On the night between 18/19-8-2000 she was on duty at Airport. On the morning Mst. Khurshid Bibi her daughter informed her that Mst. Sajida Parveen was lying unconscious in her room and on her arrival at home she inquired from Bashir as to what had happened who told her that due to some reason he had admonished her and she had taken pills. She took Mst. Sajida to the dispensary of Dr. Masood Safdar and her stomach was washed. On 7-10-2000 Mst. Khurshid Bibi told her that Mst. Sajida Parveen had taken pills to commit suicide because Muhammad Bashir her father used to commit Zina with her and used to treat her like his wife. She enquired from Sajida Parveen who confirmed the same. She then informed her son Ali Asghar who was in army. He came and decided to kill the respondent but was forbidden to take law in his hand. She alongwith Ali Asghar, Sajida Parveen and other children went to the police and got a case registered against the respondent.
' In cross-examination she admitted that Mst. Sajida did not tell any body about the alleged occurrence when she had attempted to commit suicide by taking pills and was taken to the hospital. She also admitted it correct that she and her husband used to live in one room and they did not use to associate with the people of Mohallah. She denied the suggestion that since they were liberal minded the Mohallah people did not want to associate with them. She denied the suggestion that Bashir accused had threatened to divorce her and expel the remaining children from the house.
' Khurshid Begum entered the witness-box as P.W.3 and supported the prosecution version furnished by Mst. Sajida Parveen P.W.1 and Mst. Makhmal Bibi P.W.2 in all material details about the case. During cross-examination she admitted that there was a dispute with her father in the house.
She admitted it correct that he used to restrain them from going outside. On the fateful day when Mst. Sajida Parveen attempted to commit suicide she was not given beating; however, a quarrel had taken place in the house. She deposed that it was for first time when Mst. Sajida informed her about the conduct of Muhammad Bashir. On 7-10-2000 she told her mother about it.
' Dr. Masood Safdar, Medical Officer, D.H.Q. Hospital Rawalpindi appeared as P.W.4 and deposed that one year back he was busy in his clinic when a female was brought in his clinic and he was informed that she had taken some thing due to which she was vomiting. He checked the patient Mst. Sajida Parveen. Her B.P. And pulse was towards lower side. He first administered her medicine to stop vomiting which did not stop. Then he washed her stomach and gave her medical treatment.
' Dr. Muhammad Kamran Ajaib P.W.7 deposed that on 18-10-2000 he examined Muhammad Bashir accused and found him fit to perform sexual intercourse.
' Sajid Hussain, Inspector P.W.9 carried out the necessary investigation and deposed about it and fire-arms recovered from the house of the accused.
6. After closure of the prosecution evidence the statement of the respondent was recorded under section 342, Cr.P.C. He denied the prosecution story in toto. He stated that he was impotent and not capable of performing sexual intercourse for the last about 8/9 years. In fact, his wife, daughters and sons used to indulge in immoral and indecent life and the house had depicted a picture of prostitution den which he tried to check and prevent and in his efforts, he as a first step, had denounced his son Ali Asghar, thereafter Yasir and afterwards he put complete ban on the working of his wife and daughter which they violated and started bringing persons of ill repute and conduct who had been committing Zina in his house. He also stated that the recoveries were foisted and planted on him. He owned only two weapons which were licensed and pleaded that remaining unlicensed arms were provided to the police by his denounced son Ali Asghar who had been court-martialed by the Army and was in the prison of Army due to his nefarious designs and immoral life.
' In reply to the question as to why this case against him and why the P.Ws. Had deposed against him, he stated that all the private P.Ws. Were inimical towards him for the reasons stated above and he had decided to divorce his wife because of her immoral activities and indecent acts. He stated that he had given severe beating to the complainant, his wife and other family members to exercise complete control, so as to prevent their permissive activities and purge the house from becoming a complete prostitution den. He asserted that he had caught two persons at bed with his daughter/complainant in objectionable and compromising condition and he was going to kill the whole family, and perceiving potential threat erupting from Ghairat, he was locked up in a room. It was in order to save their skin and to continue with immoral acts that he had been falsely involved in this case.
' He neither wished to appear as his own witness on oath under section 340(2), Cr.P.C. Nor produce any evidence in his defence.
' Zahid Razzaq Constable C.W.1 deposed that he was entrusted with the summons for the service upon lady Dr. Tasneem Waqar, who had left the hospital and migrated to Canada and there was no likelihood of her to return in near future.
' Fateh Sher Record Keeper, Rawalpindi General Hospital, appeared as C.W.2 and deposed that he had been working with lady Dr. Tasneem Waqar, who had left the service and migrated to Canada.
He was familiar with her writing and signatures. He proved the signatures of the lady Dr. Tasneem Waqar on the medico-legal report No,2147/2000 of Mst. Sajida Parveen.
7. We have heard the learned counsel for the parties and perused the record with their assistance.
8. This is a shocking case in which a girl had levelled allegation of commission of Zina with her by her real father and that, too, repeatedly over a period of seven/eight years.
9. It is true that as per established principles regarding appeal against acquittal judgment reappraisal of the evidence is not permissible and the impugned judgment could be interfered only in the case if it is found to be perverse or the outcome of gross misreading or non-reading of the material evidence available on record or the finding sought to be interfered with was found to be wholly artificial, shocking or ridiculous. See Khadim Hussain v. Manzoor Hussain Shah and others 2002 SCM R 261.
10. On the touchstone of the principle of law (supra) it is to be seen as to whether the prosecution had indeed succeeded in proving its case against the respondent beyond reasonable doubt and his acquittal by the trial Court has resulted in grave miscarriage of justice or that the impugned judgment is so shocking that it cannot be sustained on any principle governing the administration of criminal justice.
11. Perusal of the impugned judgment shows that the learned trial Judge was swayed to a great extent by the fact that since the family consisting of 15 members including children, mother and father, all living in one small house, it was not possible that the respondent could have the opportunity to criminal assault his daughter time and again. He has also termed the statements of Mst. Makhmal Bibi P.W.2 and Mst. Khurshid Begum P.W.3 as hearsay. He also noticed that the relations between Mst. Makhmal P.W.2 and her husband (respondent herein) were strained for the last seven years and he had also expelled two of his sons from the house due to their disobedience. As regards the statement of Mst. Sajith Parveen complainant the same was disbelieved by the sweeping observation "the solitary statement of Mst. Sajida Parveen is not confidence inspiring from any independent evidence". Another consideration that prevailed with the learned trial Judge for acquitting the respondent was that the prosecution had withheld the best evidence of Ali Asghar, Yasin and Ch. Maqbool Ahmad, Magistrate, who had recorded the statement of the appellant under section 164, Cr.P.C. According to the trial Judge, since the Magistrate did not appear in the witness-box the said statement remained unproved on record.
Lastly, it was observed that the absence of the report of the Chemical Examiner and the semen grouping report also militated against genuineness of the prosecution story.
12. We are afraid none of the considerations that weighed with the learned trial Judge for acquitting the respondent was tenable in law, for the reasons, detailed in the sequel.
13. It is in evidence that the respondent's two grown up sons had left the house. According to the respondent, due to their misbehaviour and disrespect for him they were expelled from the house and only the tender aged females and sons were living in the house. The respondent was a man of domineering character so much so that he could not tolerate the presence of grown up sons for one reason or the other and not only expelled them from his house but also disinherited them from his property. It is on record that he did not enjoy cordial relation with his wife for a number of years prior to the implication in the present case.
' Though the recovery of five fire-arms weapons (two licensed and three .Unlicensed) from him is not directly relevant for the determination of the present case yet it depicted a marked trait of criminal tendency in his character.
' In the context of the prevailing condition in the house, as mentioned above, the possibility that he, under threat of using fire-arms, used to satisfy satanic sexual urge with his daughter could not be excluded. The uneasy, rather bitter atmosphere, prevalent in the house was not taken into consideration by the learned trial Judge while deciding about the guilt or innocence of the respondent.
' It is in evidence that Mst. Makhmal Bibi P.W.2 wife of the respondent used to stay away from her house in connection with performance of her job as Health Visitor. Thus, excluding his sons who stood expelled from the house, there were left only the complainant Mst. Sajida Parveen and her tender age sisters and brothers in those days when he allegedly committed rape with her for the first time.
14. Learned Sessions Judge has erred in throwing out the testimony of Mst. Sajida Parveen with a general observation that her solitary statement could not be accepted so as to connect the respondent with the heinous crime alleged against him. It was his duty to evaluate carefully the intrinsic worth of her testimony, keeping it upper most in his mind that it was the daughter who was alleging commission of Zina-bil-Jabr by her father with her. Why a daughter would implicate her own father in a crime of utmost degradation of character, in the absence of compelling evidence, or strong motive to falsely implicate him, was a consideration which was glossed over by the trial Court, while rejecting the testimony of Mst. Sajida Parveen.
' There is plethora of case-law wherein conviction of the accused has been based on the solitary statement of the prosecutrix in a case regarding Zina-bil-Jabr subject to the proviso that the testimony was confidence inspiring. Mst. Sajida Parveen could not have been branded to be a liar without adducing cogent reasons which unfortunately, are lacking in the impugned judgment.
15. Learned Sessions Judge also fell in error of law to hold that the evidence of Mst. Makhnmal Bibi P.W.2 and Mst. Khurshid Begum was in the nature of hearsay evidence and the same, as such, could not lend corroboration to the testimony of the victim, Mst. Sajida Parveen. Obviously, in case the respondent intended to criminally assault his own daughter, he would not do so, and in fact, could not have been permitted to do so, by the other members of the family, in their presence in the house. He would be on the look out for an opportune moment when he could find Mst. Sajida Parveen alone, or at least his wife being absent, and then rape her.
' It was incorrect on the part of the learned trial Court to hold that the testimony of Mst. Makhmal Bibi and Mst. Khurshid Begum was merely hearsay evidence. As per testimony of Mst. Sajida Parveen, she continued to suffer silently the brutal and inhuman treatment being meted out by her father, partly due to shame and partly out of fear of her own life. The respondent had six fire-arms weapons in his house hidden at different places. It was only when Mst. Sajida Parveen found that the respondent, who had trampled upon inviolable human values by continuously raping her, for such a long time and thus, spoiled her life forever, that she felt apprehensive that since her younger sister Mst. Khurshid Begum had come of age she was most likely to become next target of the lust of the respondent. It is then that her will to keep this affair shrouded in mystery broke down. Site informed Mst. Khurshid Begum not only about her own plight but also administered a warning to her to be careful so to save her chastity from being ravished by the respondent. Mst. Khurshid Begum has deposed cogently about the disclosure made to her by the appellant about the conduct of the respondent.
' Almost to the same effect is the statement of Mst. Makhmal Bibi. Viewed from this angle the testimony of both Mst. Makhmal Bibi and Mst. Khurshid Bibi lends support and corroboration to the woeful tale of Mst. Sajida Parveen. Their testimony was illegally treated to be hearsay evidence.
16. Learned Sessions Judge, while acquitting the respondent, also took into consideration the factum of absence of medico-legal report of the victim and the opinion of the Chemical Examiner.
He completely lost sight of the fact that Mst. Sajida Parveen was examined by lady Dr. Tasneem Waqar, on 17-10-2000, on being produced before her by the police. At that time she was passing the third day of her menstruating period and vagina admitted two fingers easily.
' Lady doctor did not appear in the witness-box as she had left for Canada and all efforts to procure her presence in Court proved abortive.
17. As regards non-production of Ali Asghar in evidence, it is in the statement of Sajida Parveen that her mother called him from Army on telephone. He on arrival home decided to take action against the respondent but she and her mother prevented him from doing so as he was to be dealt with according to law. She then reported the matter to the police. Mst. Makhmal Bibi has supported her in this behalf and further deposed that on being forbidden by her he went back to the Army. His non-appearance as a witness was thus, fully explained.
' Zahid Razzaq C.W.1 entered the witness-box and deposed that the lady doctor had left the hospital and migrated to Canada and there was no likelihood of her return home in near future.
' Fateh Sher, Record Keeper Rawalpindi General Hospital, where the lady doctor was posted, at the relevant time, appeared as C.W.2 and deposed that since he had been working with the lady doctor he was familiar with her writing and signature. He proved the medico-legal report of Mst.
Sajida Parveen which was in the handwriting of lady doctor Tasneem Waqar as Exh.C.W.2/1 and her signature dated 17-10-2000 as C.W.2/2.
' The evidence of these two witnesses, which was fully supported by the medico-legal report, was completely omitted from the consideration. On this count as well, the impugned judgment cannot be sustained being the outcome of non-reading of material evidence.
18. Another reason advanced by the trial Court to acquit the respondent was that the report of the Chemical Examiner and Serologist (to prove rape) was not produced by the prosecution. He failed to read the medico-legal report of the victim which showed that she was in the third day of menstruation period and as such though vaginal swabs were taken by the lady doctor but these were useless as the question of obtaining definite report (due to menstruation) did not arise. This is yet another instance of reaching fallacious conclusion about innocence of the respondent due to failure to read material evidence on record.
19. Mst. Sajida Parveen was unmarried girl. Her medical examination showed that the vagina admitted two fingers easily which proved that frequently sexual act had been committed with her.
20. At this stage it would be relevant to refer to the defence plea taken by the respondent in his statement under section 342, Cr.P.C. He did not level specific allegation against his daughter that she was immorally involved with someone. He took up the general plea that his house had become a prostitution den and he was fed up with it. Had Mst. Sajida Parveen been a girl of easy virtue the respondent who was quite strict in his attitude towards his children, in exercise of his parental powers, would have prevented her from indulging in illicit activities. His inaction in this regard speaks volume not only about the probity of the version of Mst. Sajida Parveen but also is clear pointer towards the implication of the respondent in this case.
21. Learned Sessions Judge has also failed to draw the necessary inference flowing from the fact that Mst. Sajida Parveen took sleeping pills and was taken to Dr. Masood Safdar's clinic who in order to save her washed her stomach. Why did she resort to this extreme step in a bid to end her life? It is in evidence that she would often be seen by her mother and sister weeping in the house. The poor soul obviously would give vent to her misery by weeping her heart out due to the barbaric conduct of her father. The only conclusion that could be drawn from her swallowing sleeping pills could be that she felt so fed up with her life that she decided to leave this mortal world. She was saved by timely medical assistance. This aspect of the matter, though highlighted in the evidence, and had to be treated to be a strong corroborative piece of evidence in favor of the prosecution, was glossed over by the learned trial Judge. It was the perversity of his approach towards the determination of the crucial question involved in the case in the light of the evidence on record, which led to acquittal of respondent, resulting in grave miscarriage of justice.
22. It is needless to observe that the respondent did not lead any defence evidence. He merely felt content by levelling allegation against almost all the members of his family for maltreatment, disobedience and indulging in immoral acts by them. It is very significant that none from amongst his family members came forward to vindicate his position.
23. It is true that cases of this nature in which father is involved for raping his daughter are quite rare in this country. However, the crime of incest is not non-existent in our society and the present case is one of those shocking and unfortunate cases which came up before a Court of law for adjudication.
' Judged from whatever angle, the impugned judgment is not sustainable in law as it not only suffers from non-reading of Material evidence but also the failure on the part of the learned trial Court to appraise the evidence by following the settled principles for appreciation of the testimony of prosecution witnesses in a criminal case. He was, unjustifiably, swayed by the fact that it was highly improbable for a father to commit rape with his own daughter. This is despite the fact that there was evidence of unimpeachable character available on record to prove the guilt of the respondent beyond doubt.
24. The upshot of the above discussion is that, the appeal is accepted, and after setting aside the impugned judgment the respondent is convicted for the offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo ten years' R.I. He is also ordered to pay a sum of Rs,50,000 as compensation to the victim under section 544-A, Cr.P.C.
The amount shall be recovered as arrear of land revenue in default of payment of the fine the appellant to suffer further six months' S.I. The benefit of section 382-B, Cr.P.C. Is extended to him.
25. The above are the reasons for our short order, dated 25-2-2004.